WBE and Co-Counsel Defeat Motions to Dismiss in Surescripts Antitrust Suit

On June 21, 2022, U.S. District Judge John J. Tharp, Jr. denied the motions to dismiss filed by Defendants Surescripts, LLC and Allscripts Healthcare Solutions, Inc., which sought to dismiss Plaintiffs’ complaint for failure to state a claim.

Judge Tharp denied Defendants’ motions in full, concluding that there was no basis to dismiss Plaintiffs’ claims and allowing Plaintiffs to proceed with their antitrust claims under both federal and state laws.

Among other things, Judge Tharp rejected Defendants’ argument that Plaintiffs’ claims under the Sherman Act “are barred by the direct purchaser rule set forth in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977),” explaining that the argument was premature. “Even if Illinois Brick does bar the plaintiffs’ claims under federal law,” Judge Tharp explained, “the plaintiffs also assert various state law theories to which Illinois Brick is not an impediment. Because relief may be granted as to the claims alleged in the [complaint] regardless of Illinois Brick, there is no basis to dismiss the claims under Rule 12(b)(6). Rule 12(b)(6) authorizes the dismissal of claims, not legal theories.”

Judge Tharp also concluded that the Plaintiffs’ complaint states a claim under the rule of reason: “As for the merit of the plaintiffs’ claims, which center on the defendants’ use of loyalty pricing agreements, the defendants argue such agreements are legal in accordance with the price-cost test. That test is inapposite. The apt test is the rule of reason, and under it, the complaint also plausibly paints the agreements as illegal, de facto exclusive deals. The complaint also plausibly suggests the defendants entered into conspiracies to monopolize and restrain trade based on the alleged contracts between them. Accordingly, the defendants’ motions to dismiss are denied.”

For more information on this case, In Re Surescripts Antitrust Litigation, No. 19-cv-06627 (N.D. Ill.), please visit our website.

To read Judge Tharp’s opinion in full, click here.